H&R Block Eastern Enterprises Inc et al v. Intuit Inc

Filing 26

ORDER - Motions terminated: denying #5 plaintiffs' MOTION for temporary restraining order. Parties are to confer and submit on or before 5:00 P.M. JANUARY 29, 2013, a proposed scheduling order giving proposals for scheduling preliminary injunction hearing and timing of expedited discovery. Following this usbmission, the Court will enter a scheduling order for the preliminary injunction hearing. Signed on 1/29/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
H&R Block Eastern Enterprises,
Inc., et al.,
Plaintiffs,
vs.
Intuit, Inc.,
Defendant

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No. 13-0072-CV-W-FJG

ORDER
Pending before the Court is plaintiffs’ motion for temporary restraining order and
request for preliminary injunction (Doc. No. 5). Plaintiff seeks injunctive relief (until a
preliminary injunction hearing, and thereafter until further Order of this Court) restraining
defendant from (1) broadcasting, publishing, or disseminating, in any form or in any
medium, the advertisements comprising the advertising Campaign referenced in the
Complaint (Doc. No. 1); (2) broadcasting, publishing, or disseminating, in any form or in any
medium, any promotional or advertising materials containing any use of H&R Block’s
intellectual property, including without limitation the “H&R Block” name and other federallyregistered trademarks owned by H&R Block, in a manner that is likely to cause confusion,
or to cause mistake, or to deceive; and (3) broadcasting, publishing, or disseminating, in
any form or in any medium, any advertisement that claims, directly or implicitly, that: (a)
More people filed their tax returns through Defendant than through H&R Block and other
major tax return preparation companies combined; (b) H&R Block relies upon temporary
and seasonal workers while Defendant does not; (c) H&R Block’s tax preparers are
untrained, unqualified, or inexperienced. See Doc. No. 5.

The Eighth Circuit uses a four-prong test to determine whether to grant a temporary
restraining order. See Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th
Cir. 1981). The Court considers: (1) the threat of irreparable harm to the movant; (2) the
state of balance between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that the movant will succeed on the merits; and (4)
the public interest. Id.
The Court conducted a teleconference on January 29, 2013, to discuss the motion
for temporary restraining order. The Court finds that, in this case, the Dataphase factors
have not been met. In particular, plaintiff has not demonstrated a probability of success on
the merits. The standard for demonstrating a false advertising claim under the Lanham Act
is: (1) Defendant made false statements of fact about its own or another's product; (2) the
statement "actually deceived" or had the "tendency to deceive a substantial segment" of its
audience; (3) the deception created was material; (4) defendant caused the statement to
enter interstate commerce, and (5) plaintiffs have been or are likely to be injured as a result
of the false advertisement. Allsup, Inc. v. Advantage 2000 Consultants Inc., 428 F.3d 1135,
1138 (8th Cir. 2005). Upon considering all of the submissions of the parties to-date, the
Court finds that plaintiffs have not sufficiently demonstrated a probability of success at
showing that the advertisements at issue are “literally false,” and plaintiffs have not
provided sufficient evidence that the statements “actually deceived” or had a tendency to
deceive their audience. Plaintiffs further have not provided sufficient evidence that the
deception created (if any) was material to a substantial segment of the intended audience.
With respect to the other Dataphase factors, the Court finds that, on balance, they either
weigh in favor of defendant or are neutral. Therefore, plaintiff=s motion for a temporary
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restraining order (Doc. No. 5) is DENIED.
At the conclusion of the January 29, 2013 teleconference, the Court ORDERED the
parties to confer and submit to Rhonda Enss ([e-mail]) on or
before 5:00 P.M. JANUARY 29, 2013, a proposed scheduling order, giving proposals for
(1) the scheduling of a preliminary injunction hearing (which may be consolidated with a
trial on the merits, see Fed. R. Civ. P. 65(a)(2)), and (2) the timing of expedited discovery
(see Doc. Nos. 8 and 14, motions to expedite discovery). Following this submission, the
Court will enter a scheduling order for the preliminary injunction hearing.
IT IS SO ORDERED.

/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
Dated: January 29, 2013
Kansas City, Missouri

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